Inhabitants of Lexington v. County Commissioners

| Mass. | Feb 28, 1896

Knowlton, J.

The respondents located anew the way in question, and prescribed the manner in which it should be made, and assessed the expense thereof in part upon the town and in part upon the county, in accordance with the provisions of the Pub. Sts. c. 49, §§ 9, 13. Under the statute and order of the commissioners it was the duty of the town of Lexington to construct and build the way in the manner prescribed in the order. Of the expense of construction $3,000 was assessed upon the county, and the balance upon the town. By the terms of the order this sum was to be paid towards the expense of the alteration out of the county treasury into the town treasury of Lexington whenever the road should be completed to the acceptance of the commissioners, and all claims for damages growing out of the alterations should be settled. The road never was completed by the town to the acceptance of the commissioners, and the town refused to construct it according to the order as the order was understood and interpreted by the commissioners. In regard to all matters of fact involved in the determination of the question whether such an order has been complied with, the decision of the county commissioners is final and conclusive. Rice v. Middlesex Commissioners, 13 Pick. 225, 228. Walker v. Orange, 16 Gray, 193. We see no error of law in their decision that the town failed to complete the work. Indeed, it seems clear that the decision was correct. By the terms of the order the town was not entitled to receive the sum of $3,000. This sum was to be paid only upon the performance of the whole work. The commissioners thereupon made an order for the payment of $2,200 to the town, which sum was accordingly paid and accepted. On the failure of the town to finish the work, it became the duty of the commissioners to complete the road in the manner prescribed by the order. Pub. Sts. c. 49, § 60. Richards v. County Commissioners, 120 Mass. 401" court="Mass." date_filed="1876-06-20" href="https://app.midpage.ai/document/richards-v-county-commissioners-6418556?utm_source=webapp" opinion_id="6418556">120 Mass. 401. This they did at a cost of $800, which was paid from the county treasury. The whole balance of the $3,000 was thus applied to the payment of the expense of the alteration, and there was nothing more of the sum to be paid by the county which could be turned over to the town. These expenses and charges were properly paid from the county treasury, under the Pub. Sts. c. 49, § 60, and if there had not been money in the treasury applicable to the payment of them it would have been the duty of the town to reimburse the county for the payment, and the amount could have been collected on a warrant issued against the town by the county commissioners. The commissioners having previously retained this sum from the assessment made upon the county for the benefit of the town, there was no occasion for reimbursement from the town, nor for the issuing of a warrant against the town.

It is contended that the order could not be complied with literally by the town or the county commissioners without a violation of the rights of the abutting landowners, or without their consent. If that be so, we think it does not affect the case in its present form. It is to be inferred that the landowners consented to the doing of the work in accordance with the order, and for aught that appears the method adopted was a good one, both for the public and the abutters. We are of opinion that the discretion of the justice who heard the case was rightly exercised in his refusal to issue a writ of mandamus.

Petition dismissed.